Relist Watch

JOHN ELWOOD
FEB 22, 2018 2:39 PM

John Elwood reviews Tuesday’s relists, after a fashion.

The Supreme Court has just finished one of its longest breaks between conferences, from January 19 (which already seems like ancient history) to February 16. But after all that time, the court returns having dispatched only two relists – one, the old-fashioned way, by denial of cert, Serrano v. United States, 17-5165; and one by summary reversal, CNH Industrial N.V. v. Reese, 17-515. With temperatures hitting the 80s in D.C., maybe that should be summeryreversal. Kidding aside, the court has been carrying a few of these relists for months now, so it’s about time for us to be seeing opinions of some sort in them.

Issues: (1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.

Issues: (1) Whether the acting secretary of the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether the acting secretary’s decision to wind down the DACA policy is lawful.

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and, if so, whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

Issues: (1) Whether convicted sex offenders are “required to register” under the federal Sex Offender Notification and Registration Act while in custody, regardless of how long they have until release; (2) whether all offenders convicted of a qualifying sex offense prior to SORNA’s enactment are “required to register” under SORNA no later than August 1, 2008; (3) whether a defendant travels in interstate commerce for purposes of 18 U.S.C. § 2250(a) when his only movement between states occurs while he is in the custody of the Federal Bureau of Prisons and serving a prison sentence; and (4) whether SORNA’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

Issues: (1) Whether, when a Florida jury gave an advisory recommendation without making the findings required by the Sixth and Fourteenth Amendments and Hurst v. Florida, the error is automatically harmless because the advisory recommendation was unanimous, and whether the jury’s recommendation was a verdict for purposes of conducting a valid harmless-error analysis; (2) whether the death-sentencing procedures used in this case failed to comply with the Eighth and Fourteenth Amendments when the jury was advised repeatedly by the court that its recommendation would be nonbinding; (3) whether the state court violated the Sixth, Eighth and Fourteenth Amendments by giving the jury an instruction that relieved the prosecution of its burden to prove that petitioner had a careful plan or prearranged design to commit murder before the crime began in order for the jury to apply the cold, calculated and premeditated aggravating circumstance when rendering an advisory sentence of death; and (4) whether, when the appellate court held it was error for the sentencer to find one or more the aggravating circumstances, the appellate court’s decision violated the Eighth and Fourteenth Amendments when it held the error harmless because the sentencer indicated that it would still impose the death penalty if valid aggravating circumstances remained.

Issues: (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Issue: Whether, once a state abolished its practice of judicial override, which allowed a judge to sentence a defendant to death despite a jury verdict for life, the execution of a prisoner sentenced to death by judicial override prior to the abolition of this practice is arbitrary and capricious in violation of the Eighth and Fourteenth Amendments.

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21, December 1, December 8, January 5, January 12, January 19 and February 16 conferences)

Issues: (1) Whether Arizona’s capital-sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

(relisted after the December 1, December 8, January 5, January 12, January 19 and February 16 conferences)

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife, given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred — to the point of warranting summary reversal — in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.

(relisted after the January 5, January 12, January 19 and February 16 conferences)

Issues: (1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

(relisted after the January 12, January 19 and February 16 conferences)

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19 and February 16 conferences)

Issues: (1) Whether, in deadly force shooting cases, the U.S. Court of Appeals for the 2nd Circuit erred by requiring that the jury must be instructed regarding the specific legal justifications for the use of deadly force, and that the usual less specific instructions regarding the use of excessive force are not adequate, when such a requirement is in direct conflict with the Supreme Court’s decision in Scott v. Harris and subsequent decisions, which abrogated the use of special standards in deadly force cases and established “reasonableness” as the ultimate and only inquiry; and (2) whether, in light of the direct conflict with several of its sister circuits, the U.S. Court of Appeals for the 2nd Circuit’s requirement that a jury must be instructed regarding the specific legal justifications for the use of deadly force creates an uncertainty preventing law enforcement officers from having adequate fair notice of what conduct is proscribed or constitutionally permissible, thereby further hampering the application of qualified immunity at the earliest stage of a case.

Issue: Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.